(Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree of the VI Additional District Judge, Madurai dated 25.10.2013 made in A.S.No.18 of 2013 and in A.S.No.20 of 2013 reversing the decree and judgment of the learned III Additional Subordinate Judge, Madurai dated 10.04.2013 made in O.S.No.483 of 2011.
Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree of the VI Additional District Judge, Madurai dated 25.10.2013 made in A.S.No.19 of 2013 reversing the decree and judgment of the learned III Additional Subordinate Judge, Madurai dated 10.04.2013 made in O.S.No.427 of 2011.)
1. Mohammed Abdullah Sait filed a suit in O.S.No.483/2011 on the file of the trial court (Court of III Additional Subordinate Judge, Madurai) against Late T.M.V.N.Sahasranamam for a permanent injunction restraining him from interfering with his peaceful possession and enjoyment of the property described in the schedule to the said plaint. In the said suit, T.M.V.N.Sahasranamam, who figured as the sole defendant, preferred a counter-claim claiming that he was in possession and enjoyment of the suit property and praying for a permanent injunction against Mohammed Abdullah Sait (the plaintiff therein) not to interfere with his alleged possession and enjoyment of the suit property.
2. Besides making such a counter-claim in O.S.No.483/2011 filed by Mohammed Abdullah Sait, the said Sahasranamam, filed another suit in O.S.No.427/2011 against 1) S.Pakeer Maideen, 2) S.Sahul Hameed and 3) Mohammed Abdullah Sait (plaintiff in O.S.No.483/2011) arraying them as defendants 1 to 3 respectively, for the relief of permanent injunction restraining them from interfering with his alleged peaceful possession and enjoyment of the property shown as the suit property in the plaint schedule in O.S.No.427/2011. It is pertinent to note that the suit property in both the suits is one and the same.
3. After framing necessary issues in both the suits, a joint trial was conducted. The learned trial judge, at the conclusion of trial considered the evidence and pronounced a common judgment dated 10.04.2013 dismissing the suit O.S.No.483/2011 filed by Mohammed Abdullah Sait with cost, allowed the counter-claim made by T.M.V.N.Sahasranamam and decreed the suit O.S.No.427/2011 filed by T.M.V.N.Sahasranaman with cost. As against the said common judgment and decrees passed in the said suits and the counter-claim, three appeals were filed in A.S.Nos.18/2013, 19/2013 and 20/2013 on the file of VI Additional District Judge, Madurai. A.S.No.18/2013 was filed by Mohammed Abdullah Sait, who was the sole plaintiff in O.S.No.483/2011 against the dismissal of the said suit. A.S.No.19/2013 came to be filed by Pakeer Maideen, Shahul Hameed (defendants 1 and 2 in O.S.No.427/2011) and the above said Mohammed Abdullah Sait (3rd defendant in O.S.No.427/2011 /sole plaintiff in O.S.No.483/2011) against the decree granted in favour of T.M.V.N.Sahasranamam in O.S.No.427/2011. A.S.No.20/2013 came to be filed by Mohammed Abdullah Sait (the sole plaintiff in O.S.No.483/2011) challenging the decree granted in favour of Sahasranamam in respect of the counter-claim made by him, who was the sole defendant in O.S.No.483/2011.
4. During the pendency of the appeals in A.S.Nos.18 to 20 of 2013, Sahasranamam, who figured as the sole respondent in all the three appeals died and his LRs were impleaded as respondents 2 to 6 in all those three appeals. After a joint hearing of all the three appeals, by a common judgment dated 25.10.2013, the learned lower appellate judge allowed all the three appeals, set aside the decrees passed by the trial court, decreed the suit filed by Mohammed Abdullah Sait in O.S.No.483/2011 as prayed for by him, rejected the counter-claim made by T.M.V.N.Sahasranamam in the said suit and dismissed the suit O.S.No.427/2011 filed by T.M.V.N.Sahasranamam without cost.
5. As against the decree passed in A.S.No.18/2013, the respondents 2 to 6 therein have filed S.A.No.836/2013. They have also filed S.A.No.837/2013 against the decree passed by the lower appellate court in A.S.No.19/2013. As against the decree passed in A.S.No.20/2013, which arose out of a decree passed in the counter-claim made by T.M.V.N.Sahasranamam in O.S.No.483/2011, the LRs of the counter-claimant, who figured as respondents 2 to 6 in the said appeal before the lower appellate court, have preferred S.A.(MD) No.838/2013.
6. All the three appeals were admitted on 11.12.2013 and the following questions were formulated at the time of admission as the substantial questions of law involved in S.A.Nos.836 and 838/2013.
a) Whether the lower appellate court is correct in law in granting injunction without any documents to prove possession on the date of suit?
b) Whether the lower appellate court is correct in law in granting injunction on the basis of the documents which are subsequent to the suits and the decree?
c) Whether the lower appellate court is correct in law in allowing the application to receive additional evidence without adverting to the mandatory principles laid down under Order 41 Rule 27 C.P.C?
The following three questions were formulated at the time of admission as the substantial questions of law involved in the second appeal No.837/2013.
a) Whether the lower appellate court is correct in law in dismissing the suit for injunction when the defendants did not have any documents to prove their possession on the date of suit?
b) Whether the lower appellate court is correct in law in dismissing the suit for injunction on the basis of the documents which are subsequent to the suit and the decree?
c) Whether the lower appellate court is correct in law in allowing the application to receive additional evidence without adverting to the mandatory principles laid down under Order 41 Rule 27 C.P.C?
7. The arguments advanced by Mr.M.Rajaraman, learned counsel appearing for the appellants in all the three appeals and by Mr.Rubert J.Barnabas, learned counsel appearing for the respondents in all the three appeals were heard. The materials available on record were also perused.
8. S.A.Nos.836 and 838 of 2013 have arisen out of the suit in O.S.No.483/2011 filed by Mohammed Abdullah Sait and a counter-claim made by the defendant therein, namely late T.M.V.N.Sahasranamam. S.A.(MD) No.837/2013 has arisen out of the suit O.S.No.427/2011 filed by the said Sahasranamam, who was the sole defendant in O.S.No.483/2011. Both the suits and the counter-claim were tried together. Evidence was recorded in common for both the suits and the counter-claim and the suits and the counter-claim were disposed of by a common judgment. The appeals arisen therefrom were also heard jointly and were disposed of by a common judgment of the lower appellate court dated 25.10.2013. Therefore, all the second appeals are interlinked and they have got to be heard together for disposal by a common judgment. In fact the counsel appearing for the parties in all the three appeals, have not only consented for such joint hearing, but have also requested this court to hear all the three second appeals jointly and dispose of the same by a common judgment. Accordingly, on the basis of the arguments advanced on both sides and after perusing the records concerned in both the suits, counter-claim and the three appeals that arose therefrom, this court pronounces the following common judgment.
9. Since all those who are parties in S.A.(MD) Nos.836/2013 and 838/2013 are also parties in S.A.(MD) No.837/2013, the parties shall be referred to in accordance with their ranks in O.S.No.427/2011 for the sake of convenience and in order to avoid confusion. The term plaintiff shall mean T.M.V.N.Sahasranamam, the sole plaintiff in O.S.No.427/2011 (first defendant/counter claimant in the other suit O.S.No.483/2011). The term defendants 1 and 2 will mean Pakeer Maideen and Sahul Hameed, the defendants 1 and 2 in O.S.No.427/2011. The term 3rd defendant will mean Mohammed Abdullah Sait, the third defendant in O.S.No.427/2011 (sole plaintiff in O.S.No.483/2011). However at appropriate places, wherever necessity arises, the ranks of the parties in the particular second appeal will also be indicated.
10. A coconut thope roughly measuring about 2.42.0 hectares comprised in S.No.3/2 having patta No.80 in Silaiman Village, Madurai South Taluk, Madurai District, bounded on the east by Saralakuzhi pallam, west by thope belonging to Thastakeer and others, south by Ramanathapuram Main Road and North by Vaigai river has been shown as the suit property in O.S.No.427/2011. The deceased plaintiff T.M.V.N.Sahasranamam, in the said suit filed by him, prayed for a perpetual injunction against defendants 1 to 3 therein contending that the said property originally called "Tahsildar thope" belonged to his family by virtue of a purchase made by his ancestors and after their purchase it came to be known as "minor thope" and that the said property fell to his share in a partition under a registered partition deed dated 05.12.2007. It was also contended that a small building in the thope as well as the thope had been under the direct control, possession and management of the plaintiff; that the defendants, who were engaged in the business of making chamber bricks wanted him to sell the said property to them for plotting out and selling the same as house sites; that in an attempt to coerce the plaintiff to part with the property in their favour, the defendants were making attempts to forcibly enter into the suit property and they were also trying to interfere with the peaceful possession and enjoyment of the plaintiff in respect of the suit property and that hence he was forced to approach the trial court with the suit O.S.No.427/2011 for permanent injunction against all the three defendants.
11. The third defendant in O.S.No.427/2011 (Mohammed Abdullah Sait), besides resisting the said suit, filed a suit O.S.No.483/2011 against T.M.V.N.Saharanamam. The averments made by him in the written statement filed in O.S.No.427/2011 and in the plaint O.S.No.483/2011 are in brief as follows:
"Though the thope, which is the suit property in both the suits belonged to the plaintiff, one Ismallusa, the grandfather of the third defendant was appointed as a watchman and caretaker for maintaining the suit property for a monthly salary of Rs.75/-. He was also inducted as tenant in respect of the small building situated in the suit property the monthly rent for the building was fixed at Rs.25/- per month. Deducting the monthly rent from the salary, Ismallusa was paid a net amount of Rs.50/- per month as salary. Till the death of Ismallusa, the third defendant Mohammed Abdullah Sait was residing with him in the above said building situated in the suit property. After the death of Ismallusa, Abinsha Begum, the widow of Ismallusa became a tenant in respect of the said building on the very same conditions and she was also looking after the property as it was done by Ismallusa. Abinsha Begum died in 1997 and after her death, the third defendant Mohammed Abdullah Sait, became a tenant in respect of the building and watchman and caretaker in respect of the thope. The rent for the building was fixed at Rs.100/- per month, whereas the salary for him as watchman and caretaker was fixed at Rs.1,100/- per month. After deducting the monthly rent of Rs.100/-, a net salary of Rs.1,000/- per month was being paid by the plaintiff to the third defendant. Subsequently, by virtue of an oral lease arrangement, the third defendant was permitted to raise inter crops such as thuvarai, plantain etc. and thus he became a cultivating tenant enjoying the yield from the land out of such cultivation sharing it at the ratio of 3:1 between him and the plaintiff. In view of the same, the third defendant Mohammed Abdullah Sait became entitled to the protection of the provisions of the Tamil Nadu Cultivating Tenants (Protection) Act, 1955 in respect of the thope. So far as the building is concerned, he became a statutory tenant protected by the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960."
12. The third defendant Mohammed Abdullah Sait, based on the above said contentions prayed for the dismissal of the suit O.S.No.427/2011 filed by the plaintiff T.M.V.N.Sahasranamam. Contending further that the plaintiff T.M.V.N.Sahasranamam made an attempt on 17.02.2011 to evict him without adopting due process of law and that the said attempt was successfully resisted by the third defendant, he prayed for the relief of permanent injunction in O.S.No.483/2011 filed by him. The very same property that is shown as the suit property in O.S.No.427/2011 has been shown as the suit property in O.S.No.483/2011 filed by the third defendant.
13. The plaintiff T.M.V.N.Saharanamam, who was made the sole defendant in O.S.No.483/2011, resisted the suit based on the very same contentions raised by him in his own plaint in O.S.No.427/2011. Besides offering resistance to the prayer made by the third defendant, the plaintiff T.M.V.N.Sahasranamam also made a counter-claim in O.S.No.483/2011 for a similar relief of permanent injunction as he had prayed in his own suit O.S.No.427/2011.
14. The case of the plaintiff is that his ancestors were in possession and enjoyment of the suit property without inducting any one either as a caretaker and watchman in respect of thope portion of the suit property and without inducting any one as a tenant in respect of the building situated therein. It is his further case that after the family partition in which the suit property fell to his share, he was in possession and enjoyment and no one was inducted either as a care taker or watchman in respect of the thope or as a tenant in respect of the building. According to the plaintiff, except him no other person was in possession and enjoyment of the suit property in any capacity as on the date of the filing of the suit. To be precise, it is the case of the plaintiff that even a permissive possession was given to any one and the suit property continued to be in his direct control, possession and enjoyment. In line with the above said contentions, the plaintiff claimed that the defendants, who wanted the plaintiff to sell the land, made an attempt to trespass into the suit property and interfere with the peaceful possession and enjoyment of the plaintiff on 17.02.2011 with a view to coerce the plaintiff to part with the property in their favour; that such an attempt was thwarted by the plaintiff and that since the defendants were able to influence the police, the plaintiff was forced to approach the court for protecting his possession in respect of the suit property.
15. The defendants had taken a plea, which is diametrically opposite to the plea taken by the plaintiff. According to the defendants, the plaintiff was not in actual possession and enjoyment of the suit property as on the date of the suit. They also contended that the small building situated in the suit property had been let out to Ismallusa, the grandfather of the third defendant for a monthly rent of Rs.25/-; that the said Ismallusa was also employed as a watchman-cum-caretaker for the thope for a monthly salary of Rs.75/- and that after deducting the said rent from the salary, a net amount of Rs.50/- was paid to the said Ismallusa as his net salary. It is their further contention that after the death of Ismallusa, his wife Abinsha Begum continued to be a tenant in respect of the building and watchman and caretaker in respect of the thope portion and that after the death of Abinsha Begum, the third defendant continued as a tenant in respect of the building and as a watchman and caretaker in respect of the thope portion of the suit property. It is their further contention that during his period, the rent was increased to Rs.100/- per month and the monthly salary was increased to Rs.1,100/- and after deducting the rent a net salary of Rs.1,000/- per month was being paid to the third defendant. The further contention of the defendants is to the effect that in due course of time, an oral lease came to be granted in favour of the third defendant for raising inter crops like thuvarai, plantain in the space in between the trees in the thope on the understanding that 1/4th of the yield shall be paid to the plaintiff and 3/4th of the yield would be retained by the third defendant and that thus the third defendant became a cultivating tenant in respect of the land entitled to the protection of the provisions under the Tamil Nadu Cultivating Tenants (Protection) Act, 1955.
16. In the trial before the trial court, the plaintiff Sahasranamam figured as the sole witness (PW1) and he produced 22 documents marked as Exs.A1 to A22. Four witnesses were examined as DWs.1 to 4 and 65 documents were marked as Exs.B1 to B65 on the side of the defendants. Before the lower appellate court, the defendants 1 to 3 filed an application under Order 41 Rule 27 CPC. The same was taken on file as I.A.No.1031/2013 in A.S.No.19/2013. As many as 13 documents were sought to be produced as additional evidence. 5 out of 13 documents were rejected and the remaining eight documents were marked as Exs.B66 to B73. The documents marked as Exs.B66 to B70 were receipts for payment of electricity charges in respect of SC No.05-063-005-128 in the name of T.M.V.Nanniah, the father of the plaintiff. The other three documents marked as Exs.B71 to B73 are respectively, a copy of the first information report in Crime No.120/2013 dated 15.05.2013 registered on the file of Silaiman Police Station against the defendants and others based on a complaint of the plaintiff T.M.V.N.Saharanamam, a copy of an order dated 22.05.2013 made in M.P.No.1/2013 in W.P.No.8643/2013 (filed by the third defendant Mohammed Abdullah Sait) on the file of the Madurai Bench of Madras High Court granting an interim injunction in M.P.No.1 of 2013 in W.P.No.8643/2013 filed by the third respondent Mohammed Abdullah Sait and a copy of the order extending the above said interim order.
17. It is true that the defendants filed the above said application I.A.No.1031/2013, which was partly allowed by the lower appellate court by an order dated 25.10.2013 and that the above said documents came to be marked as Exs.B66 to B73. However the docket order made in I.A.No.1031/2013 is to the effect that a separate order was pronounced allowing the said application in part and that the additional documents were marked as Exs.B66 to B73. The entire docket order dated 25.10.2013 reads as follows:
LANGUAGE
However the fair order prepared and signed by the learned lower appellate judge contains the operative portion to the effect that, since the non-production of the receipts had been commented upon by the trial court, the said mistake was sought to be rectified by the defendants and that hence the said receipts were marked as additional evidence. The fair order proceeds further to state that those receipts were marked as Exs.B66 to B70. A comparison of the fair order with the docket order shows an apparent conflict between them, as the fair order shows marking of Exs.B66 to B70 alone, whereas the docket order shows marking of Exs.B66 to B73. Nothing is found in the fair order regarding the marking of the copy of the first information report and copies of the orders passed by the Madurai Bench of the Madras High Court in M.P.No.1 of 2013 in W.P.(MD) No.8643/2013. However, the list of exhibits annexed to the common judgment of the lower appellate court contains all the eight documents marked as Exs.B66 to B73 as additional documentary evidence admitted by the lower appellate court during the hearing of the appeals.
18. Apart from the above said discrepancy, a reading of the order of the lower appellate court dated 25.10.2013 made in I.A.No.1031/2013 in A.S.No.19/2013 will make it obvious that the Appellate court did not follow the procedure contemplated under Order 41 Rule 27 CPC. There is nothing to show that the lower appellate court rendered a distinct finding as to under which sub clause (a) or (aa) or (b) of Rule 27 of CPC, the defendants had made out a case for reception of additional evidence. It is a settled proposition that the application filed under Order 41 Rule 27 CPC should be heard along with the appeal and the entire evidence adduced before the trial court should be considered by the appellate court to arrive at a conclusion as to whether permission sought to adduce additional evidence in the appellate stage should be granted. It does not mean that the judgment in the appeal and the order in the application under Order 41 Rule 27 CPC should be pronounced simultaneously. What is mandated is hearing of them together and not disposal of both at one and the same time. This will be clear from a reading of the rule, namely Rule 28 CPC. Rule 28 under Order 41 CPC reads as follows:
"18. Mode of taking additional evidence.- Whenever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court to take such evidence and to send it when taken to the Appellate Court".
Once the Appellate Court comes to the conclusion that the additional evidence sought to be produced should be allowed, the next question that arises for consideration is, "whether the Appellate Court itself shall conveniently record the evidence or the trial court or any other subordinate court should be directed to record the evidence and transmit the same?". In case the Appellate Court comes to the conclusion that the application for receipt of additional evidence filed under Order 41 Rule 27 CPC is liable to be dismissed, then the attraction of Rule 28 CPC shall stand excluded and there shall be no impediment for the Appellate Court to pronounce a judgment on merit in the appeal as arguments on merits could have been heard not only in the application but also in the appeal. In such an event, the order dismissing the application under Order 41 Rule 27 can be incorporated in the judgment itself and the appeal and the application can be disposed of by a common judgment and order. On the other hand, if such an application is allowed, then necessarily the Appellate Court has to follow the procedure contemplated under Rule 28 CPC. By the very nature of things, it shall require a separate order being passed in the application filed under Order 41 Rule 27 CPC permitting adduction of additional evidence and thereafter taking a decision as to in which court the additional evidence is to be recorded.
19. In the case on hand, no doubt, the learned lower Appellate Judge has chosen to pass a separate order in the application filed under Order 41 Rule 27 CPC allowing the said application. However, the learned lower appellate judge committed an error in simply marking the documents produced as additional evidence, without adopting the procedure contemplated under Rule 28 CPC. The lower Appellate Court, after allowing the said application, ought to have followed the procedure of marking the documents on proof of their admissibility and relevance. The opposite party also shall have a right to cross-examine the person through whom such documents are sought to be proved. Hence by the very nature of things, in the event of the Appellate court allowing an application under Order 41 Rule 27 CPC, the procedure for recording evidence ought to have been followed. For the above said proposition, there is only one exception, in which case alone, the Appellate Court can incorporate an order allowing such an application in the judgment itself and proceed to pronounce a judgment taking into account the additional documents produced as evidence in the appellate stage. The said exception is that when the opposite party in the application under Order 41 Rule 27 CPC says no objection for marking the documents sought to be produced as additional evidence without questioning its genuineness, admissibility or relevancy. In such cases, the same can be marked by consent and the court can proceed with pronouncement of the judgment incorporating such an order in the common judgment and order.
20. In this case, though the learned lower appellate Judge has chosen to pass a separate order in the application filed under Order 41 Rule 27 CPC, it committed an error in marking the documents suo motu without asking the party producing them as additional evidence to lead evidence in proof of those documents. Hence, as rightly contended by the learned counsel for the appellants in the second appeals, the procedure adopted by the learned lower appellate judge for marking Exs.B66 to B73 is not only contrary to the procedure contemplated under Order 41 Rule 28 CPC, but also vitiated. Apart from the said mistake, there is also an apparent error, which may even be a clerical, exhibiting a contradiction between the docket order and the fair order as to how many documents were marked. In addition, the learned counsel for the respondents has conceded that the respondents can support and sustain the decrees passed by the lower appellate court even without the assistance of the additional documents produced before the lower appellate court and marked as Exs.B66 to B73. If all these aspects are taken into consideration, this court has to come to a necessary conclusion that the lower appellate court committed an error in law in marking Exs.B66 to B73 without following the procedure contemplated under Order 41 Rule 28 CPC. The third substantial question of law in the second appeals is answered accordingly in favour of the appellants and against the respondents.
21. The suit property comprises a thope containing coconut trees and mango trees and a building situated therein. There is no dispute regarding the fact that the suit property, including the building, belongs to the plaintiff. The title of the plaintiff in respect of the suit property has been admitted by the defendants. However the defendants claim that the third defendant Mohammed Abdullah Sait is a tenant in respect of the building in the suit property and that he is a cultivating tenant in respect of the rest of the suit property, namely thope. According to the defendants, the plaintiff's predecessor in title inducted the third defendant's grandfather Ismallusa as a tenant in respect of the building and engaged him as a watchman and caretaker of the thope. As per the case of the defendants, Ismallusa was entitled to a monthly salary of Rs.75/- for his service as watchman and caretaker, whereas he was liable to pay a rent of Rs.25/- per month for the building situated in the suit property regarding which he was inducted as a tenant. In line with the said contention, they have contended further that after deducting the rent from the salary, Ismallusa was paid a net salary of Rs.50/- per month.
22. It is the further case of the defendants that all along the third defendant was with his grandfather; that after the death of Ismallusa, his widow Abinsha Begum stepped into his shoes and was doing the very same service to the plaintiff's predecessor in title for the same type of remuneration. According to the defendants' case, after the death of Abinsha Begam, the third defendant Mohammed Abdullah Sait was recognised as tenant of the building, but with an enhanced rent of Rs.100/- per month and continued to be engaged as watchman and caretaker of the thope for a monthly remuneration of Rs.1,100/- from which Rs.100/- was deducted towards rent for the building and the balance amount of Rs.1,000/- was paid as his net monthly remuneration.
23. On the other hand, the plaintiff took a stand totally denying the connection between himself and the third defendant or between Ismallusa and the plaintiff's predecessors in title. According to the plaintiff, neither Ismallusa, the grandfather of the third defendant nor his widow Abinsha begum did function as a watchman and caretaker of the thope and at no point of time, either Ismallusa or his widow Abinsha Begam was there in occupation of the building as a tenant. The contention of the plaintiff is that the defendants, who are doing chamber brick business, wanted the plaintiff to sell the land to them so that they could lay out the land into house sites and sell it to various persons and that when he refused to concede their demand and resisted the attempt made by the defendants to trespass into the property, the defendants chose to seek a claim as if the third defendant is a tenant in respect of the building and is a watchman and caretaker in respect of the thope, besides claiming to be a cultivating tenant in respect of the land as if he was permitted to raise inter crops like thuvarai and plantain etc. in the space between the trees.
24. In this regard, except the interested testimony of the plaintiff, who figured as PW1, there is no independent evidence through third party witnesses to substantiate his case that at no point of time either Ismallusa or Abinsha Begum or the third defendant was in possession and enjoyment of the building either as a tenant or a permissive occupant. There is also no corroborating piece of evidence supporting the testimony of PW1 regarding the alleged attempt made by the defendants to trespass into the suit property. A certified copy of the sale deed dated 05.12.1949 registered as Document No.1612/1949 in the office of the District Registrar, Madurai (South) has been produced as Ex.A1 to show that the suit property was purchased by Nannaiah (father of the plaintiff) and others. The patta issued in the name of the plaintiff Sahasranaman son of Nannaiah has been produced as Ex.A2. The 'A' Register extract relating to the suit property in the name of the plaintiff is Ex.A3. A kist receipt dated 28.07.2008 issued by the Village Administrative Officer is Ex.A4. Adangal extract for 1420 Fasli relating to the suit property issued by the Village Administrative Officer is Ex.A6. Electricity charges paid for the service connection No.23100 for the month of April 2011 in the name of Nannaiyer, the father of the plaintiff is Ex.A5. Except the above said documents, which go to show that Nannaiyer and other purchased the suit property under the original of Ex.A1 and that subsequently patta came to be issued in the name of the plaintiff Sahasranamam. They pertain to the issue of title to the suit property. No other document barring Ex.A4, a solitary kist receipt, Ex.A5, a solitary receipt for payment of electricity charge, came to be produced by the plaintiff to prove that the suit property is in his possession.
25. As indicated supra, the plaintiff's title to the suit property has not been disputed and it is a fact admitted by the defendants. The self-serving interested testimony of PW1 and the above said documents shall not be enough to prove that the plaintiff is in possession and enjoyment of the suit property. However the plaintiff has chosen to produce a copy of the complaint lodged by the plaintiff with the Inspector of Police, Silaiman and the receipt issued by the Sub Inspector of Police, Silaiman as Ex.P11. The complaint came to be lodged only on 25.03.2011. The third defendant Mohammed Abdullah Sait filed his suit O.S.No.483/2011 previously as 36/2011 on 21.02.2011 itself and it was numbered on 22.02.2011. Summons came to be issued returnable by 22.03.2011. Only after the receipt of summons in the said suit filed by the third defendant Mohammed Abdullah Sait, the plaintiff T.M.V.N.Sahasranamam chose to prefer the above said complaint on 25.03.2011 as if on 23.03.2011 the third defendant unlawfully trespassed into the suit property and fitted an oil motor pump-set in the well therein with a view to show the property to be in his possession.
26. It is also obvious from the plaint in O.S.No.427/2011 (originally numbered as O.S.No.2/2011 in the vacation court) that the same came to be filed only on 03.05.2011. As a prelude to the filing of the said suit as a counter measure for the suit filed by the third defendant, namely O.S.No.483/2011 and to make a counter-claim in the suit filed by the third defendnat, the complaint came to be lodged with the police. The police, on being appraised of the fact that the dispute is civil in nature and the case is pending in a civil court, has not chosen to register an FIR based on the said complaint. Hence the said document marked as Ex.A11 shall not help the plaintiff Sahasranamam to prove his case that the suit property was in his possession and enjoyment as on the date of filing of the third defendant's suit O.S.No.483/2011 and also as on the date of filing of his own suit, namely O.S.No.427/2011.
27. In fact O.S.No.483/2011 was filed first in point of time and O.S.No.427/2011 came to be filed subsequently. In an attempt to show that the defendants are land grabbers and they attempted to grab the suit property in order to coerce the plaintiff to sell the property to them, the plaintiff has chosen to produce certified copies of three sale deeds as Exs.A7 to A9. Ex.A7 is the duplicate copy of the sale deed dated 03.05.2007 executed by the plaintiff Saharanamam in favour of one Abitha Begum wife of Pakeer Mohammed. But it must be noticed that the husband's name of the purchaser under Ex.A7 is shown as Pakeer Mohammed, whereas the name of the first defendant has been furnished as Pakeer Maideen. Apart from that there is no connection between the suit property and the said document. A similar duplicate sale deed dated 18.05.2006 executed by the plaintiff Sahasranamam in favouor of Shakila Banu @ Syed Ali Fathima, daughter of Abudhalif relating to another property has been produced as Ex.A8. The name of the father of the purchaser under the said document does not tally with the name of any one of the defendants. Ex.P9 is the duplicate sale deed dated 03.05.2007 executed by the plaintiff Sahasranamam in favour of Ajmeer Banu.
28. It is not in dispute that the said Ajmeer Banu is none other than the daughter of the third defendant. Even the said document will not render any help to the plaintiff to prove his case that he was in possession and enjoyment of the suit property either as on the date of filing of O.S.No.483/2011 or on the date of filing of O.S.No.427/2011. The mere fact that the plaintiff has sold another property to the daughter of the third defendant will not be enough to show that the defendants wanted the plaintiff to sell the suit property to them so that they could lay out the same into house sites and sell the house sites to others. In fact, it is an admitted fact that the third defendant is doing the business of manufacture of chamber bricks and there is no proof that he or any other defendant is engaged in Real Estate business. Therefore, the above said documents produced by the plaintiff Sahasranamam in support of his contention that the defendants were motivated to trespass into the land in order to coerce the plaintiff to sell the land to them, will, in no way, help him to prove the said contention. However, the plaintiff has chosen to produce 10 photographs with negatives marked as Exs.A12 to A21. They simply show the gate in the suit property, the existence of a small old building in the suit property and coconut, mango and palmyra trees. Ex.A20 has been taken in such a way that a car was parked in the shade under a mango tree and a person identified it to be plaintiff was working. Exs.A13, A14 and A17 show that there is a shed adjoining the old building, in which a Maruthi Omni car had been parked and the plaintiff was also seen there near the car. Exs.A16 shows some scrap material and the plucked coconuts placed in a heap in the above said shed. None of the above said photographs were taken with a camera displaying the date and time. There is no proof as to when such photographs came to be taken. The book published by one Shahul Hameed (second defendant) in the name of Golden Bricks to promote his brick business has been produced as Ex.A22. The same will also not help the plaintiff to prove his possession and enjoyment of the suit property.
29. On the other hand, the third defendant who figured as DW1, besides giving a vivid description of the salient features of the suit property, he has also explained the variety of trees found in the suit property. It is his clear testimony that his grandfather Ismallusa was working as watchman-cum-caretaker of the thope and he was residing in the building available in the suit property as a tenant. In all other respects, he repeated and reiterated his stand taken in the plaint in O.S.No.483/2011 and in the written statement filed in O.S.No.427/2011.
30. One Paramaraj son of Subramania Pillai figured as DW2 and he corroborated DW1 regarding his evidence that DW1 (3rd defendant Mohammed Abdullah Sait) was in possession and enjoyment of the suit property from 1997 and before that his grandmother was in possession. According to his testimony, the same was within his personal knowledge. However the evidence of DW2 regarding the employment of Ismallusa as watchman-cum-caretaker is only hearsay and hence inadmissible.
31. One Singaravelan son of Subramani figured as DW3. He was the Panchayat Vice President of Silaiman for the period 1996-2001. He gives a clear description of the suit property as it consists of a thope and a house in it and a car shed. He also speaks about the existence of a well fitted with a pump-set. He has also clearly spoken about the fact that from 1997 when the maternal grandmother of the third defendant died, the third defendant was functioning as watchman of thope and he was residing in the house therein as a tenant. He has also spoken about the fact of his cultivation of inter-crops in the thope using the water lifted from the well through an oil engine pump-set for irrigating the land. He has also clearly stated that the third defendant was cultivating plantain, thuvarai, brinjal, ladies-finger, butter-beans etc. It is also his clear evidence that he used to go to the said thope to purchase the said products of agriculture from him.
32. One P.Panneer Selvam, Village Assistant of Silaiman Village, was examined on summons as DW4. He speaks about the fact that the suit property was cultivated by the maternal grandmother of the third defendant from 1991 to 1997 and that thereafter, the third defendant was cultivating the land. It is his clear evidence that in two acres plantain trees have been planted as inter crops and in 45 cents entirely plantain trees have been raised. It is also his evidence that there was an electric motor pump-set fitted in the well and that for the past two years before his examination, the third defendant was lifting water using an oil engine pump-set. DW1 and DW4 have made it clear that the suit property is called "Thaila Thope". Like the plaintiff, the defendants have also produced a number of photographs marked as Ex.B1 to B46 and the negatives marked as Exs.B47 to B49. In the said photographs also, no date and time are found. The photographs show inter-crops in the space in between the coconut trees. It also shows the existence of plantain trees, the presence of the son of the third defendant amidst the plantain trees, collection of plantain leaves, binding them into bundles for transportation for sale and storing them in front of the building available in the suit property. They also show the existence of a well for irrigation. The presence of vegetable bearing plants like ladies-finger, etc are also seen. The son of the third defendant locking the gates is also seen from the photographs. A cot, mat and cooking utensils found in the building also show the habitation in the building. At least four bundles of banana leaves were found stocked in front of the building.
33. Apart from the negatives, the third defendant has also produced letters addressed to him to the suit property as Exs.B50 to B55. Ex.B50 is a postal card dated 04.12.1984 sent by one Muthusamy to the third defendant with the following address:
LANGUAGE
Ex.B51 is another postal card dated 05.11.1987 sent by one Baskaran to the third defendant to the above said address. Ex.B52 is a postal card sent by the third defendant on 05.11.1987 to one Sundaram informing him that he had handed over a sum of Rs.1,000/- to his grandmother and that the addressee Sundaram could hand over the said postal card to the grandmother of the third defendant and collect the money from her as he would be out of station for 10 days. The postal card sent by the third defendant to Sundaram had been produced by the defendants. An explanation as to how and in what circumstances it came into the hands of the third defendant has been clearly explained in evidence. As directed in the letter the said Sundaram handed over the same to the granmother of the third defendant and collected the amount. Similarly, a postal card dated 30.04.1992 sent by one Sikkanther to the third defendant to the above said address has been produced as Ex.B53. Similar letter dated 17.10.1993 received by the third defendant from Sulthan in Ex.B54. A postal card sent by one Sebastin from Vellore on 30.12.2010 to the above said address to the third defendant has been produced as Ex.B55. All these letters were addressed to the third defendant noting his address as "Thaila Thope, Opposite to Silaiman Bus Stand, Opposite to Rukmani Mill, Silaiman".
34. Ex.B57 is a bunch of receipts for purchase of certain commodities. In many of those receipts, the word "Thaila" came to be written separately. Hence no credence can be attached to them. A bunch of receipts produced as Ex.B58 shows that the third defendant address was given as Thaila Thope. Though Exs.B59 to B61 are receipts obtained subsequent to the date of filing of the suit, they show the address of the third defendant to be Thaila Thope and they are all receipts for the supply of raw banana (unripe) to the Commission Mandy at Munichalai Road, Madurai. Ex.B62 is only a photo identity card issued by the Government under Farmers Welfare Scheme. Hence, no credence can be attached to the above said documents. Exs.B64 and 65 do not relate to the suit property. They have been produced for the sole purpose of showing that DW2 and DW3 are residents of Salaiman village and hence, they have got personal knowledge of the alleged possession and enjoyment of the suit property by the third defendant.
35. The reliance made by the lower appellate Court on Exs.B64 and B65 for the above said limited purpose cannot be said to be either improper or erroneous. However, no valid reliance could have been made on Exs.B57 to B62, since Ex.62 is only a photocopy and the other documents are documents that came into existence subsequent to the filing of the suit and also self-serving documents. However reliance made on the other documents, which are admissible and relevant, cannot be said to be improper. A consideration of the documents produced on behalf of the defendants, which are held to be relevant and admissible and also the testimonies of DWs 1 to 4 in contrast with the absence of any other evidence supporting the interested testimony of PW1, will show that the third defendant was in possession of the suit property as on the date of filing his suit.
36. However, learned counsel for the appellant has argued that the photographs produced by the plaintiff as Exs.A12 to A21 will show that the plaintiff had access to the suit property and that he had parked his car in the shed abutting the building in the suit property. According to the submissions made by the learned counsel for the appellants, if at all the suit property was in the exclusive possession and enjoyment of the third defendant Mohammed Abdullah Sait, the plaintiff could not have had free access to the suit property and that the very presence of the plaintiff's car and the plaintiff in the suit property will make it clear that it is the plaintiff who is in possession and enjoyment of the suit property. However, an argument has been advanced on behalf of the appellants (Legal representatives of the deceased plaintiff) to the effect that even if the case of the defendants as projected by them is accepted to be correct, the third defendant, who admits to be an employee of the plaintiff engaged as watchman-cum-caretaker of the coconut trees, cannot claim to be a cultivating tenant on the sole ground that he was raising intermittent crops in the thope with or without the permission of the owner. As an answer to the above said contention, learned counsel for the respondents/defendants has submitted that the third defendant was a tenant in respect of the building in the suit property and a lessee in respect of the land in which coconut trees are there; that the third defendant was only a watchman and caretaker for the coconut trees implying that enjoyment of the yields of the coconut trees alone was with the owner, namely the deceased plaintiff Sahasranamam; that only for collecting usufructs of the coconut trees, the deceased plaintiff had got access to the suit property and that on one such occasion, the plaintiff who brought the car, took photographs with an evil mind to project it as an evidence to show that the suit property is in his possession. In an attempt to show that the third defendant is no way connected with the suit property, the plaintiff chose to produce Ex.A10 wedding invitation of one Jasmin @ Raiyath and S.Basheer Ali. In the said invitation, the names of the third defendant and his wife are found and below the name of the third defendant, the words Golden Bricks appear. The defendants have produced Ex.B63 as the original wedding card. In Ex.A10, below the name of the third defendant, the words Golden Bricks alone are found. However, in Ex.B63, below the name of the third defendant, the words Thaila thope, Silaiman have been printed. A comparison of Exs.A10 and B63 will go to show that Ex.A10 is not the original and Ex.B63 alone is the original wedding card.
37. The above said contention of the learned counsel for the respondents / defendants seem to be quite sustainable and tenable. This is so because the deceased plaintiff produced one Kist receipt, one electricity bill and one Adangal extract and no other kist receipt or electricity bill or Adangal extract came to be produced. Of course, the defendants have also not produced the kist receipt, electricity bills or Adangal extracts for the period during which the third defendant has alleged to have been in possession and enjoyment of the suit property. However, by producing the photographs marked as Exs.B1 to B46 and their negatives marked as Exs.B47 to B49, the defendants were able to show that in the space in between the coconut trees, plantain trees and other plants have been cultivated and in a vast extent plantain trees had been grown which had started yielding. The said documents also show that the third defendant's son had cut the banana leaves and bundled them for sale. Four such bundles of banana leaves are also found in the photographs. The evidence of Dws.1 to 4 to the effect that the third defendant is cultivating the land and raising intermittent crops like Thuvarai, ladies finger etc., and that the third defendant also had grown plantain trees in the space available between the coconut trees stands corroborated by the photographs produced by the defendants. The case of the plaintiff is total denial of the defendant's contention that vegetables were cultivated. The evidence of DWs.1 to 4 that a large area of 45 cents at a stretch which was found without any coconut tree and it was fully used for cultivation and plantain trees were raised by the third defendant get support and corroboration from the photographs marked as Exs.B1 to Ex.B46.
38. The contention of the deceased first plaintiff was to the effect that neither the third defendant nor his mother nor his paternal grandfather had any connection with the suit property either as a tenant or as a lessee or as a permissive occupant. It is the further contention of the plaintiff that no intermittent crops like Thuvarai, ladies finger and plantain trees were raised in the suit property even in the spaces available between the coconut trees. Such a contention stands falsified by Exs.B1 to B46 photographs, which would show the existence of such vegetable plantation and plantain trees. Hence, it is quite clear that by preponderance of probabilities the defendants case that the third defendant had raised those vegetable plantation and plantain trees stands proved. Hence, this Court does not find any defect or infirmity in the finding of the lower appellate Court (final Court of appeal on facts) that the suit property was proved to be in the possession and enjoyment of the third plaintiff as on the date of filing of the suit in O.S.No.483 of 2011 and O.S.No.427 of 2011 and that the plaintiff Sahasranamam was not able to prove his possession and enjoyment of the suit property as on the dates of filing of the above said suits. The said factual finding cannot be interfered with as the said finding is not proved to be perverse.
39. The learned counsel for the appellants (Legal representatives of the deceased plaintiff Sahasranamam) argued that, even if it is assumed that the third defendant is proved to be in possession of the suit property, being a person in permissive possession, he could not claim to be a cultivating tenant in respect of a thope contending that he is raising intermittent crops and that hence he is not entitled to any injunction as he has prayed against the true owner, namely the deceased plaintiff. Yet another attempt has been made on behalf of the appellants/legal representatives of the deceased plaintiff to show that the suit property does not have the name "Thaila Thope" and it is known only as "Thasildar Thope". In this regard, as against the copious evidence adduced on the side of the defendants, both oral and documentary, there is no reliable evidence on the side of the plaintiff to show that the suit property is not known as Thila Thope. There is also absence of evidence to show that any other property is called "Thaila Thope". Hence, the finding of the lower appellate Court that the third defendant was in possession of the building and he was cultivating the rest of the suit property with intermittent crops, paying a share in the yield to the plaintiff, cannot be said to be either defective or erroneous, much less perverse so as to enable this Court dealing with the second appeal to interfere with such finding.
40. Moreover, the third defendant Mohammed Abdulla Sait has moved an application before the competent authority (Record Officer) under the provisions of the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act, 1969 to record his name as a cultivating tenant under the plaintiff in respect of the suit property. Since the possession of the third defendant has been proved and he has also approached the competent authority to decide his claim as a cultivating tenant, the said question should be left to be decided by the competent authority under the Act, namely the Record Officer and the Civil Court shall refrain from giving any finding regarding the claim of the third defendant to be a cultivating tenant in respect of the suit property. The prayer made by the third defendant in his suit O.S.No.483 of 2011 is that he should not be evicted or dispossessed or his possession and enjoyment of the suit property should not be disturbed by the plaintiff except by adopting due process of law. The prayer made by the third defendant is only for an injunction, which shall depend upon the outcome of the proceedings before the Record Officer under the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act, 1969. Such a limited prayer not to be evicted or not to be dispossessed by the plaintiff without adopting due process of law till the question of his claim as a cultivating tenant in respect of the land and a tenant in respect of the building are determined, is quite reasonable and sustainable.
41. For all the reasons stated above, this Court comes to the conclusion that the lower appellate Court has not committed any error in law in holding that the third defendant Mohammed Abdulla Sait was entitled to a decree for permanent injunction as prayed for in suit O.S.No.483 of 2011 and that the plaintiff was not entitled to the relief of permanent injunction as prayed for by him in his plaint in O.S.No.327 of 2011 and also in his counter claim made in O.S.No.483 of 2011. Hence, the first and second substantial questions of law formulated in all the second appeals are answered accordingly against the appellants/legal representatives of the deceased plaintiff and in favour of the respondents / defendants.
42. Of course, the third substantial question of law has been answered in favour of the appellants (Legal representatives of the deceased plaintiff). In line with the answer given to the said substantial question of law, this Court has omitted the additional documents marked during the hearing of the appeals in the lower appellate Court as Exs.B66 to B73 from the purview of consideration. Based on the evidence adduced on both sides, both oral and documentary, before the trial Court alone, this Court answered the first and second substantial questions of law against the appellants (Legal representatives of the plaintiffs) and in favour of the respondents / defendants. As the first and second substantial questions of law have been answered against the appellants/ legal representatives of the deceased plaintiff and in favour of the respondents/defendants, the challenge made to the lower appellate Court's decrees dated 25.10.2013 passed in A.S.No.18 to 20 of 2012 are found to have no substance in it and the challenge made to the said decrees of the lower appellate Court dated 25.10.2013 are bound to fail.
Accordingly, all the three second appeals fail and they are dismissed. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are dismissed. However, it is made clear that the parties are at liberty to work out their remedy before the Record Officer under the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act, 1969 in respect of the claim made by the third defendant to be a cultivating tenant of the suit property excepting the building and based on the decision of the competent authority under the Act, the parties can workout their remedies in an appropriate forum under separate proceedings. So far as the building is concerned, it shall be open to the appellants (Legal representatives of the deceased plaintiff) to approach the appropriate forum for eviction or possession as the case may be.